B. v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1034V

B.B., on behalf of B.S., a minor child, Chief Special Master Corcoran

Petitioner, Filed: May 14, 2024 v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Danielle Anne Strait, Maglio Christopher & Toale, PA, Seattle, WA, for Petitioner.

Madelyn Weeks, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS 1

On March 5, 2021, B.B., on behalf of B.S., a minor child, filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). Petitioner alleges that B.S. suffered intussusception as a result of receiving a rotavirus vaccination on August 10, 2018. Petition at 1-2. On March 25, 2022, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. ECF No. 31.

1Because this Decision contains a reasoned explanation for the action taken in this case, it must be made

publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access.

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $47,846.27 (representing $41,290.60 in fees plus $6,555.67 in costs). Additionally, Petitioner requests $8,151.00 in fees and costs incurred in establishing the estate of B.S. Petitioner’s Motion for Attorney Fees and Cost (“Motion”) filed November 1, 2023, ECF No. 50. In accordance with General Order No. 9, Petitioner filed a signed statement indicating that she incurred no out-of-pocket expenses. ECF No. 50 - 5.

Respondent reacted to the motion on November 14, 2023, indicating that he is satisfied that the statutory requirements for an award of attorney’s fees and costs are met in this case, but deferring resolution of the amount to be awarded to my discretion. Respondent’s Response to Motion at 2-3, ECF No. 51. Petitioner filed a reply on November 16, 2023, requesting the fees and costs be awarded in full. ECF No. 52.

I have reviewed the billing records submitted with Petitioner’s request. In my experience, the request appears reasonable, and I find no cause to reduce the requested hours or rates. Furthermore, Petitioner has provided supporting documentation for all claimed costs. Motion, Ex. 3. Respondent offered no specific objection to the rates or amounts sought.

The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs.

Accordingly, Petitioner is awarded the total amount of $55,997.27 as follows:

• A lump sum of $47,846.27, representing reimbursement for attorneys’ fees and costs, in the form of a check payable jointly to Petitioner and Petitioner’s counsel, mctlaw;

• A lump sum of $8,151.00, representing reimbursement for Guardianship fees and costs, in the form of a check payable to Bridget Bailey, as guardian of the Estate of Bryce Dion Smith Jr.; and

• Petitioner requests that checks be forwarded to mctlaw, 1605 Main Street, Suite 710, Sarasota, Florida 34236.

In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk of Court shall enter judgment in accordance with this decision. 3

3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review. 2 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master